State of Louisiana v. Ronnie White-Hardison

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-643

STATE OF LOUISIANA

VERSUS

RONNIE WHITE-HARDISON

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C12884
HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy and James T. Genovese, Judges.

AFFIRMED.

Van Hardin Kyzar
District Attorney
Lala Brittain Sylvester
Assistant District Attorney
Post Office Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

James E. Beal
Louisiana Appellate Project
Post Office Box 307
Jonesboro, LA 71251-0307
(318) 259-2391
COUNSEL FOR DEFENDANT/APPELLANT:
Ronnie White-Hardison

AMY, Judge.

The defendant was charged with distribution of cocaine, a violation of La.R.S.

40:967. A jury found him guilty as charged. He was sentenced to serve twelve years

in prison, two of which must be served without the benefit of probation, parole, or

suspension of sentence. The defendant appeals, contending that he was denied his

constitutional right to testify. As explained below, we affirm.

Factual and Procedural Background

The defendant, Ronnie White-Hardison, was charged by bill of information

with distribution of a controlled dangerous substance classified as a Schedule II

narcotic, in violation of La.R.S. 40:967(A). The State alleged that two undercover

agents were driving around the defendant’s neighborhood, when the defendant

approached the car and sold the agents thirty dollars worth of cocaine. At trial, the

State introduced a video-tape of the alleged transaction. The agents testified that after

they received the cocaine from the defendant, they immediately brought it to a

detective assigned to the case, who then sent it to the assistant police chief and,

ultimately, to a crime lab for identification purposes. After listening to testimony and

reviewing the evidence presented, a jury unanimously found the defendant guilty as

charged.

A pre-sentence investigation report was ordered. After a hearing, the defendant

was sentenced to serve twelve years in the custody of the Louisiana Department of

Corrections, with credit for time served, and with two years of the sentence to be

served without benefits. The sentence was ordered to run concurrently with any other

sentence the defendant may be serving. The defendant appeals, asserting a sole

assignment of error: he was denied his constitutional right to testify. For the reasons

that follow, we affirm.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find no errors

patent.

Right to Testify

On appeal, the defendant asserts that he was denied the right to testify at his

own trial, claiming that “for the first time, at sentencing, [he] attempted to give his

version of the events depicted in the film of the alleged drug transaction.” He

claimed his actions in the video-tape represented his effort to protect the undercover

agents but he did not have an opportunity to offer that explanation at trial. At the

sentencing hearing, he stated:

And uh, I wasn’t never familiar with going to trial and the confusion of
my life . . . that it was just a wishy washy thing, with one telling me a
sentence on fifteen (15) and the other telling me one on ten (10). And
what I didn’t understand was . . . I didn’t know I would have to go
through the process without speaking up for myself during the incident
of the trial, you know. Because it was something I wanted to say about
the trial. You know I didn’t . . . I didn’t mean . . . what happened was
when I heard through the last end of the verdict was that y’all was
keeping the streets clean from people that sell drugs, you know. And
uh, what I was just wanting to explain that it wasn’t in no particular way
that I was introduced to be a drug dealer like that. It was . . . what I was
trying to tell this narcotic officer, me trying to be a good person, seeing
something fixing to happen to him. . . . And what I wanted to say was,
I was trying to defend them, telling them that they should . . . they
should leave . . . don’t come around here like that, you know.

He further asserted:

That’s all I just wanted to know what was the punishment could
have been for me for a mistake like that, instead of going to prison for
a long time. I was asking what could a punishment through a true
judgment be instead of that, because I told the truth. But I didn’t get a
chance to do it at trial, because he said that would mess my record up.
I don’t know, that was my first time going to trial.

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At the hearing the defendant also stated that “he wouldn’t even let me talk” and

“I didn’t get a chance to explain myself to this matter.” In his brief, he contends that:

[d]efense counsel was present throughout the sentencing proceeding, but
did not state anything contrary to the defendant’s contentions on the
record. When asked if [the defendant’s attorney] had any questions of
[him]. . . defense counsel did not ask [him] anything, leaving the
statement of the defendant un-contradicted as to defendant’s denial of
his right to testify.

The defendant argues that his conviction should be vacated and set aside and

that a new trial be granted on the ground that the defendant was denied his right to

testify at trial.

The supreme court discussed a defendant’s right to testify in State v. Shaw, 06-

2467, pp. 21-22 (La. 11/27/07), 969 So.2d 1233, 1246:

An accused’s right to testify is a fundamental right of
constitutional dimension. Rock v. Arkansas, 483 U.S. 44, 51-53, 107
S.Ct. 2704, 2710, 97 L.Ed.2d 37 (1987); State v. Hampton, 00-0522, pp.
4-5 (La.3/22/02), 818 So.2d 720, 723-724. Because the right is
personal, it may be relinquished only by the defendant, and the
defendant’s relinquishment of the right must be knowing and
intentional. Hampton, 00-0522 at 7, 818 So.2d at 725.

In Hampton, this court established a framework for determining
whether a defendant’s right to testify was violated or waived by his
silence during trial. In doing so, a plurality commented in dicta that
absent extraordinary circumstances that should alert the trial court to a
conflict between attorney and client, the court should not inquire into a
criminal defendant’s right to testify; rather, the court should assume that
a criminal defendant, by not attempting to take the stand, has knowingly
and voluntarily waived his right. Hampton, 00-0522 at 14, 818 So.2d
at 729, quoting Passos-Paternina v. United States, 12 F.Supp.2d 231
(D.P.R.1998).

In Hampton, the supreme court discussed the guidelines set forth in Passos-

Paternina:

In determining whether a defendant’s right to testify was violated
or waived by his silence during trial, we can look to Passos-Paternina
v. United States, 12 F.Supp.2d 231 (D.P.R.1998), for guidance. As a
guideline, the Passos-Paternina court held:

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(1) absent extraordinary circumstances that should
alert the trial court to a conflict between attorney
and client, the court should not inquire into a
criminal defendant’s right to testify. The court
should assume, that a criminal defendant, by not
‘attempting to take the stand,’ has knowingly and
voluntarily waived his right;

(2) the court must consider whether the petitioner
has waived his right to testify. . . . [The defendant
can only] rebut that presumption . . . by showing that
his attorney caused him to forego his right to testify
[ (a) by alleging specific facts, including an affidavit
by the defendant’s trial counsel] from which the
court could reasonably find that trial counsel ‘told
[the defendant] that he was legally forbidden to
testify or in some similar way compelled him to
remain silent . . .’[‘][ (b) by demonstrating from the
record] that those ‘specific factual allegations would
be credible . . .’

Id. at 239-40 (citations omitted). We find this framework persuasive.
Passos-Paternina also lists a third factor for consideration. However,
because the third factor employs a harmless-error analysis to denial of
a fundamental right, we decline to adopt it from the Puerto Rico District
Court. The jurisprudence of both the U.S. Supreme Court and this Court
is well-settled in that denial of a fundamental right is not amenable to
harmless-error. See McKaskle v. Wiggins, 465 U.S. at 177 n. 8, 104
S.Ct. 944; Fulminante, 499 U.S. at 302, 111 S.Ct. 1246; State v.
Dauzart, 769 So.2d at 1210.

Hampton, 818 So.2d at 729-30 (footnote omitted).

There is nothing in the trial transcript to suggest that the defendant expressed

a desire to testify. Further, there is no affidavit by the defendant’s counsel, indicating

he interfered with the defendant’s right and wish to testify. We find that the

defendant has not rebutted the presumption that his silence at trial equated to a waiver

of his right to testify. Accordingly, this assignment of error lacks merit.

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DECREE

For the foregoing reasons, the defendant’s conviction for distribution of

cocaine is affirmed.

AFFIRMED.

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